Tunisia: Constitutional expert II (Italian constitutional justice)

Background

The Tunisian constitution foresees creation of a Constitutional Court (CC), which will replace the temporary Instance provisoire de la constitutionnalité des projets de lois. The law on the CC was adopted in 2015 (loi organique n° 2015-50 du 3 décembre 2015, relative à la Cour constitutionnelle) and it is now expected that the Court would be established in 2017/2018. According to the Constitution, the CC is composed of 12 members. The members are appointed by the Assembly of the Representatives of the People (the Parliament), and the Supreme Judicial Council and by the President of the Republic, on equal shares, according to the procedures defined by the Constitution and the law. Similarly, the Constitution and the law determine requirements, which candidates must fulfil in order to be considered for the appointment.

The new Court will face major challenges at the outset of its functioning. As there is a limited tradition of the constitutional justice in Tunisia the new institution may need to draw from comparative examples of other constitutional courts. The issues to be addressed in the first period of establishing and functioning of the future Tunisian Constitutional Court will include the internal rule of procedure and organization of the court’s work and most importantly how will the Court handle the substantive and procedural aspects of issuing the decision.

The Court will then need to contribute to strengthening the citizens’ awareness and understanding of their constitutional rights and the role that the Court plays in protecting these rights and the rule of law in Tunisia. It is the more relevant since the Constitutional Court has no precedent in Tunisian history. Therefore, an average citizen cannot be expected to easily understand the Court’s mission and mandate. On the contrary; there is a risk that the Court might be perceived as an abstract body with little connection to the day-to-day life of Tunisians. At the same time, the citizens’ sense of ownership and responsibility as well as their consciousness of the Court’s role as part of the constitutional rule of law system in Tunisia will be important in protecting its independence from any political attempts to curb or limit its powers in the future.

Some of the concrete issues, which will have to be addressed during the initial period of the Court’s functioning, will include the motivation of the Court’s decisions; the first Court’s decisions will then have to make reference to the laws preceding the constitution the Court will then, inter alia, have to address the constitutional interpretation of the limitations of the constitutional rights and freedoms.

In order to promote debate on these issues amongst academics and practitioners as well as to promote the exchange of the comparative experiences DRI will partner with Association tunisienne de droit constitutionnel (ATDC) in organizing series of three seminars in the period from April to June 2017. Particular comparative experience will be drawn from the Italian Constitutional Court. The Italian experience was identified based on discussions with ATDC taken the origins of the court, established in 1950s during the democratization period in Italy. The Italian court brings experience of an institution, which faced considerable difficulties and reluctance on the side of the political elites during a prolonged phase of its creation. The Court went then a long way in reassuring its legitimacy to be today remains a reputable institution with unquestionable legitimacy and role.

As such DRI and ATDC will bring together judges of the Italian Constitutional Court, Italian constitutional experts together with Tunisian constitutional experts, academia, judges, members of parliament, civil society and media over the course of three seminars organized in Tunis on the following themes:

1. Motivation of the Constitutional Court’s decisions on an example of the Italian Constitutional Court (including topics of collegiality, audience, style and presentation of arguments) – to be held at the end on April 2017;
2. The initial decisions of the Constitutional Court (laws preceding the constitution; normativity of the constitution, jurisprudence of the Court concerning decisions on unconstitutionality) – to be organized in May 2017;
3. Constitutional interpretation and limitations of rights and freedoms (principle of proportionality) – to be organized in June 2017.

Expected output of the assignment

The consultant will prepare and present substantive inputs during seminar no. 2 The initial decisions of the Constitutional Court (laws preceding the constitution; normativity of the constitution, jurisprudence of the Court concerning decisions on unconstitutionality).

Process methodology and approach

The consultant will work with DRI team based in Tunis, DRI consultant based in Italy and Tunisian experts from ATDC to coordinate preparations for presentation of inputs during seminar no. 2. When in Tunis the consultant will contribute to the seminar by providing substantive presentations as well as will actively contribute to the discussions during the event and in the course of individual meetings and working sessions.

Location

One mission will be carried out in Tunis with preparatory and post-missions home-based work.

Tasks and deliverables of the consultant

Under the direct supervision of the DRI Tunisia Country Director, the consultant will
be responsible for:

1. Preparation of the inputs to the seminar in coordination with other experts;
2. Preparation and delivery of presentations during the second seminar (The initial decisions of the Constitutional Court (laws preceding the constitution; normativity of the constitution, jurisprudence of the Court concerning decisions on unconstitutionality) to be organised in May 2017, while contributing to the debates during the event;
3. Carry out individual meetings with stakeholders in Tunisia, in the course of which the Italian comparative experience would be presented.

Deliverables for each mission:

1. Seminar materials, handouts and presentations;
2. Delivery of sessions/presentations;
3. One page report for the seminar in French or English (workshops materials used will be annexed to the report) delivered 7 days following completion of each of the workshops.

Duration of the assignment

The Consultant will be contracted for the period from April till July 2017 with the total maximum number of days corresponding to the number of the experts days provided in this section.

The working days will include home-based work and mission days in Tunisia:

1. Total of home based for the entire assignment (preparatory work, reporting) – maximum of 2 days;
2. One missions in Tunis, (participation in seminar, meetings, working sessions) – maximum of 2 days.

Qualificationsand competences

1. At least Ph.D. in the constitutional law;
2. At least 15 years of related work experience;
3. Extensive proven experience working on Italian constitutional justice;
4. Proven network of contacts among Italian constitutional justice scholars and practitioners;
5. Experience working with members of parliament, government and senior representatives of government institutions as well as with civil society;
6. Teaching/training experience, experience in presenting during the conferences;
7. Experience working in Tunisia would be an asset;
8. Ability to provide written and oral concise analysis and to develop documents;
9. Fluency in spoken and written French.

For interested applicants, please send your CV to tunisia@democracy-reporting.org with “Constitutional expert II” as the subject heading.

Closing date for applications: 7 April 2017.

Please note that the position may be filled before the deadline and only the selected candidate will be contacted.